Schmidt v. Zeigler

Superior Court of Pennsylvania

Schmidt v. Zeigler

30 Pa. Super. 104, 1906 Pa. Super. LEXIS 27

CourtSuperior Court of Pennsylvania

DecidedJanuary 13, 1906

DocketAppeal, No. 39

StatusPublished

Cited by4 cases

This text of 30 Pa. Super. 104 (Schmidt v. Zeigler) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schmidt v. Zeigler, 30 Pa. Super. 104, 1906 Pa. Super. LEXIS 27 (Pa. Ct. App. 1906).

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Opinion

Per Curiam,

This is an appeal from a judgment entered for want of a sufficient affidavit of defense upon a scire facias to revive an earlier judgment. In the fourth and fifth assignments of error, however, the defendant complains of the action of the court relative to his application to open the original judgment. It is apparent that those assignments are not based on the record properly brought before us on this appeal. We therefore need not discuss them. We remark, however, that even if there were before us an appeal from the refusal of the court to open the judgment there would be no ground upon which we could base a reversal of that action of the court. The opinion filed by the learned judge shows that the matter came before him in reality. upon petition and a responsive answer denying all the material allegations of the petition, and, we add, if there was any testimony outside of them before the court, or which the court ought to have received, it has not been printed and brought up for our consideration. Therefore the fourth and fifth assignments are dismissed.

Passing then to the questions properly raised upon this appeal, we refer first to the amendment of the writ of scire facias. The writ is not printed in the appellant’s paper-book but it is not disputed that, except as to the amount, it correctly recited the judgment sought to be revived in every particular, including the number and term. It is apparent, therefore, that under the authorities cited in the opinion of the learned 'judge below and the appellee’s brief it was amendable by the record itself ; and this being so, the court committed no error in mating that order.

Confining attention to those matters which can properly be set up in defense to a scire facias to revive we find no error in the action of the court. The difficulty with the defendant’s position on this appeal is that his defense, if he has any to the plaintiff’s claim, is one that could not be set up in a proceeding to revive the original judgment. This has been shown quite clearly in the opinion filed by the learned judge below and we do not feel called upon to go over the ground again.

The judgment is affirmed.

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Per Curiam,

This is an appeal from a judgment entered for want of a sufficient affidavit of defense upon a scire facias to revive an earlier judgment. In the fourth and fifth assignments of error, however, the defendant complains of the action of the court relative to his application to open the original judgment. It is apparent that those assignments are not based on the record properly brought before us on this appeal. We therefore need not discuss them. We remark, however, that even if there were before us an appeal from the refusal of the court to open the judgment there would be no ground upon which we could base a reversal of that action of the court. The opinion filed by the learned judge shows that the matter came before him in reality. upon petition and a responsive answer denying all the material allegations of the petition, and, we add, if there was any testimony outside of them before the court, or which the court ought to have received, it has not been printed and brought up for our consideration. Therefore the fourth and fifth assignments are dismissed.

Passing then to the questions properly raised upon this appeal, we refer first to the amendment of the writ of scire facias. The writ is not printed in the appellant’s paper-book but it is not disputed that, except as to the amount, it correctly recited the judgment sought to be revived in every particular, including the number and term. It is apparent, therefore, that under the authorities cited in the opinion of the learned 'judge below and the appellee’s brief it was amendable by the record itself ; and this being so, the court committed no error in mating that order.

Confining attention to those matters which can properly be set up in defense to a scire facias to revive we find no error in the action of the court. The difficulty with the defendant’s position on this appeal is that his defense, if he has any to the plaintiff’s claim, is one that could not be set up in a proceeding to revive the original judgment. This has been shown quite clearly in the opinion filed by the learned judge below and we do not feel called upon to go over the ground again.

The judgment is affirmed.

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Bluebook (online)

30 Pa. Super. 104, 1906 Pa. Super. LEXIS 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schmidt-v-zeigler-pasuperct-1906.

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